Appeal No. 2004-0340 Page 4
Application No. 09/847,121
The examiner rejected the claims as obvious in view of Riley, reasoning
that Riley
discloses an oral daily supplement composition comprising
Vitamins A, D, E, C (Buffered Calcium Ascorbate, Ascorbic Acid
and Ascorbyl Palmitate) and quercetin, see claim 2. Riley . . . also
discloses an oral daily supplement composition comprising vitamins
A, C, D3 and E, see claim 3. See also Table II, columns 25 and 28.
It would have been obvious to one of ordinary skill in the art at the
time the invention was made to employ an amount [e]ffective to
promote nerve growth of a vitamin D3 derivative, ascorbyl palmitate
and quercetin in a single . . . composition.
Examiner’s Answer, page 3. The examiner also asserted that “the
interconversion of dosage forms, i.e., the conversion of two-three modular
formulations into a single composition is within the skill of the artisan, and is
therefore obvious.” Id., page 6.
Appellant argues that Riley does not suggest combining all of the active
ingredients required by the instant claims into a single composition. Rather,
“Riley teaches that the total daily dosage of claim 2 should be divided into
several distinct modular formulations. . . . Thus, Riley does not disclose the
composition containing vitamins A, D, E, C and quercetin that the Examiner relies
upon in support of the rejection.” Appeal Brief, page 6 (emphases in original).
“In rejecting claims under 35 U.S.C. § 103, the examiner bears the initial
burden of presenting a prima facie case of obviousness.” In re Rijckaert, 9 F.3d
1531, 1532, 28 USPQ2d 1955, 1956 (Fed. Cir. 1993). When determining
obviousness, “the prior art as a whole must be considered. The teachings are to
be viewed as they would have been viewed by one of ordinary skill.” In re Hedges,
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